McDonald v. Dabney

• Decision Date: 10 February 1926
• Docket Number: 4948,5000.
• Parties: McDONALD et al. v. DABNEY. DABNEY v. McDONALD et al.
• Court: Georgia Supreme Court

132 S.E. 547

161 Ga. 711

McDONALD et al. v. DABNEY.

DABNEY v. McDONALD et al.

Nos. 4948, 5000.

Supreme Court of Georgia

February 10, 1926

Rehearing Denied Feb. 24, 1926.

Syllabus by the Court.

Where a motion for new trial was overruled on April 25, 1925, the bill of exceptions reciting that the hearing was had during term time, and where the court did not adjourn within 30 days from the date of the organization and opening of the court and where the bill of exceptions was presented and certified on May 30, 1925, which was within 60 days from the date of the judgment overruling the motion for new trial, the bill of exceptions will not be dismissed on the ground that it was not presented to the judge within the proper time. Civil Code 1910, § 6152.

The court sustained certain exceptions of fact filed by the plaintiff to the findings of fact by the auditor. The order sustaining these exceptions provides "that the issues of fact involved in said exceptions be referred to a jury, by appropriate questions to be propounded to the jury as the court shall determine to be suitable and proper at the time of the submission of the issues of fact to the jury." To the provision of the order that the issues of fact involved in said exceptions be referred to a jury "by appropriate questions to be propounded to the jury as the court shall determine to be suitable and proper," the defendants excepted pendente lite on the ground that the same was contrary to law; and they assign error on these exceptions in their bill of exceptions in this case. Held:

(a) Where exceptions of fact to the report of an auditor are filed, the judge shall cause each issue thus made to be submitted to the jury; and in all cases the jury shall find for or against such exceptions submitted, seriatim. Civil Code 1910, § 5146; Harris v. Lumpkin, 136 Ga. 47 70 S.E. 869; Whitfield-Baker Co. v. Anderson, 147 Ga. 242, 93 S.E. 406.

(b) The issues of fact involved in such exceptions cannot be referred to the jury, independently of and without reference to the findings of the auditor, by such questions as the court shall determine to be suitable and proper, at the time of the submission of the issues of fact to the jury; but each exception of fact must be submitted to the jury under appropriate instructions to determine whether they sustain or find against the findings of fact made by the auditor. In no case, when exceptions to findings of fact by the auditor are filed, can the court submit all issues of fact raised by the pleadings and evidence to the jury for their determination as if the case had not been submitted to an auditor, over the objection of a party. The court having construed this provision of the order as providing for such submission and having acted upon such construction in trying the case, this provision of the order was contrary to law.

(c) The assignment of error that this provision of the order was contrary to law is sufficient. Pace v. Pace, 154 Ga. 712, 115 S.E. 65.

On the trial of exceptions of fact to the report of the auditor, which exceptions had been duly approved by the court, the court charged the jury as follows: "Now you take this case, gentlemen, as an original proposition in the matter. It is your duty to pass on it under the evidence in the case. In so doing, you will not be influenced in any manner whatsoever by the findings of the auditor. The auditor's findings in the case, one way or the other, should have nothing to do with your deliberations; you are not bound by his findings; you should not be influenced by any finding that the auditor may have made, or that he may have failed to make in the case. You are trying the case as an original proposition under the evidence in the case, and it is your duty, as upright, intelligent, impartial jurors, acting fairly and impartiality in the matter, uninfluenced by anything outside of the evidence in this case and the principles of law that the court will give you in charge, and your deliberations under all the facts and circumstances of the case, under the evidence in the case-it is your duty, acting, I say, fairly and impartially in the matter, to reach a verdict that will speak the truth as you think the truth is under all the facts and circumstances of the case, under all the evidence in the case, taking the principles of law in the case as given you in charge by the court. *** Now I am submitting this case to the jury without any reference to anything that the auditor has decided, and the court is controlling the case and sending it to the jury as an original proposition for the jury to decide under the facts and evidence in the case, and not to be influenced in any way by what the auditor may or may not have found in the case. The court has taken it from the auditor and is sending it to you, gentlemen of the jury, as an original proposition." Held:

(a) The findings of fact by an auditor are prima facie true, and the burden of overcoming such findings rests upon the party making the exception. Adair v. St. Amand, 136 Ga. 1 (3), 70 S.E. 578; Livingston v. Wynne, 147 Ga. 307, 93 S.E. 877. It follows that the court erred in giving the above instructions to the jury.

(b) The fact that, upon the determination of the court to require the jury to find a special verdict of the facts only in the case, counsel for the defendants submitted an issue of fact which they claimed arose under the pleadings and evidence in the case and should be passed upon by the jury, did not authorize the court to give said instruction to the jury. Upon the trial of exceptions of fact to an auditor's report, whether such trial is had under the method provided for in the Civil Code 1910, § 5146, or under the method pursued by the court in this case, the findings of fact by the auditor are prima facie true, and the burden of overcoming them rests upon the exceptor.

The court charged the jury as follows: "A joint interest in the partnership property, or a joint interest in the profits and losses of the business, constitutes a partnership as to third persons. A common interest in profits alone does not." Movants except to this charge upon the ground that it was not applicable under the facts. Held, that this exception was well taken. The question of the existence of this partnership as to third persons was not involved.

The court charged the jury as follows: "If you should find that Mr. Dabney had no interest in the real estate under his agreement and relations with McDonald, then the question of whether he consented or approved of the conveyance would not be material." Movants except to this charge upon the ground that it assumes the existence of an agreement between Dabney and McDonald, when the existence of such agreement was one of the strongly disputed questions in the case. Held, that this instruction was erroneous for the reason assigned.

In the eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth grounds of the motion for new trial, movants complain that the court erred in refusing to give in charge to the jury certain principles of law embraced in requests which were timely preferred. In these grounds it is not alleged that these requests were preferred by movants. It not being alleged that these instructions were requested by the defendants, we cannot say that they were hurt by the refusal to give them. Before a party can complain of the refusal of the court to give instructions embraced in requests, it must appear that such requests were preferred by the complaining party.

Movants insist that the court erred in propounding to the jury the series of questions it submitted to them, on the ground that the only questions which should have been put to the jury were whether the findings of fact by the auditor were true. Under the ruling made in headnote 2, the court erred in propounding such series of questions. Movants, having expressly excepted to an order providing for the submission to the jury of such questions as the court might think appropriate in eliciting the facts of the case, which exception was properly preserved by exceptions pendente lite, on which error is assigned in their bill of exceptions in this court, are not now estopped from complaining of the series of questions propounded by the court by reason of their participation in shaping these questions; movants at the time expressly reserving their said exception to this mode of trial. In Malette v. Wright, 120 Ga. 735, 48 S.E. 229, the parties agreed that the jury should not pass upon each exception of fact, but that all matters of fact should be submitted as a whole, to be decided either for the plaintiff or the defendant. In Pearce v. Smith, 160 Ga. 337, 127 S.E. 764, the case was submitted to the jury under an order in which it was provided that he might render a final decree, or such other decree as he saw fit, in vacation.

Possession of land is notice of whatever right or title the occupant has.

(a) Possession is notice of the rights of those under whom the possessor claims.

(b) The possession of land which will be notice of the occupant's title must have some element in it indicative that the occupancy is exclusive in its nature. Manning v. Manning, 135 Ga. 597, 69 S.E. 1126.

(c) The protection which the Registration Law gives to one taking title to lands upon the faith of the record title should not be destroyed except upon clear and satisfactory evidence showing a clear equity in him who seeks to establish a right in hostility to the record title.

(d) Such possession must be actual, open, visible, exclusive, and unambiguous.

(e) Applying the above principles, the plaintiff did not make out a case which entitled him to recover from Luetta T. Boddie the property bought by her from Elizabeth Dabney,...